In 1993, 39-year-old lawyer Ujjwal Nikam was appointed as Special Public Prosecutor in the 1993 serial blasts case. For the man from the small town, Jalgaon, in Maharashtra, this was his first challenge. Now a leading criminal lawyer, Mr. Nikam has sought the death penalty for several convicts. Speaking to The Hindu, he revisits the 1993 trial in light of the death penalty awarded to Yakub Memon. Excerpts:
Yakub has filed a petition before the Supreme Court again.
I do not want to comment on that as the matter is sub judice, but the Supreme Court has laid down certain guidelines which clearly say that after the rejection of mercy petition, the convict must be given a 40-day notice so that the convict can meet family members and manage his affairs. In short, he can have the mental satisfaction of having met his family.
Why does the prosecution feel that Yakub should be hanged?
It is not a question of one person’s hanging. Crime must be punished. The crime which Yakub committed is not only serious, it is also the ‘rarest of rare’ because 257 people were killed and over a 1,000 were permanently injured. Property worth crores of rupees was damaged.
What about the reform aspect?
I do agree that reform of the convict is an important theory of punishment. But only corrigible elements can be reformed. Yakub Memon’s acts — hatching a criminal conspiracy while knowing the consequences, leaving Mumbai before the act, and planning and executing the act in the manner that he did — all show that he has a depraved and cruel tendency. I think such people are incorrigible elements.
Can you describe the day the TADA court sentenced Yakub to death? He reacted dramatically saying the judge did not know what he was doing.
I saw Yakub for a long time in the court. He was very calm during the court proceedings. He kept aloof from all the other accused. That shows his tendency of loneliness. At the same time, being a Chartered Accountant and knowing English well, he was fluent in his actions. He had a calculative mind. Perhaps, when the judgment was being read and he found that the there was so much evidence against him, he lost his mental balance and he had that outburst. I still remember those days when Yakub sometimes used to be enraged and lose control. One witness once told me that one person with a lawyer was making enquiries about us. I suspected something foul. I asked the witness to identify him before the court. He said it was Yakub Memon’s cousin [Usman Memon]. Judge J.N. Patel passed a prohibitory order against him [Usman] because he was trying to influence the witnesses. Had Yakub been innocent or had surrendered, there would not have been any need to influence witnesses. All these calculated efforts indicated Yakub’s hand in the conspiracy.
There was no independent evidence that Yakub had knowledge of the conspiracy.
A conspiracy is normally hatched in secrecy. We can seldom have direct criminal evidence. Generally, criminal conspiracies are inferred from irresistible facts which we relied upon. Yakub never confessed; his presence at the meeting where the conspiracy was hatched has been established by an approver. He left Mumbai before the day of the blasts. Why? If he were innocent, he should have remained here.
But the confessions were retracted…
Yes, some have been retracted, but we have other corroborative evidence that he had knowledge of the conspiracy and participated in it.
What about his ‘surrender’? He was brought to India in a mysterious fashion.
I am not aware as to whether he really surrendered or not, but from the facts I can say that his surrender theory is totally false.
Did Yakub play a crucial part in cracking the case?
No. We already had the approver, who not just divulged the conspiracy but also disclosed how it was hatched.
In jail he was known as an educated man. Do you think such a person is not capable of reform?
Whatever he has done, like giving advice to other prisoners, cannot turn back the bad things he has done. At the most, his attempt was to gain sympathy. Whatever he did post the incident was just eyewash.
What do you think would be the impact of this punishment?
A conspirator is the director of a movie. The Supreme Court has made a distinction between the conspirators and those acting in pursuance of a conspiracy. That is why the Supreme Court commuted the sentence of the planters from death to life imprisonment.
What do you think of the view that a civilised society must do away with the death penalty?
The death penalty is necessary, but its execution has not been timely. The idea of a deterrent sentence is not to punish the criminal but to give a message to like-minded people. But if there is an inordinate delay, the very purpose of a deterrent sentence is frustrated. I have seen cases where the criminal has committed a crime even after spending 20 years in jail.
rahi.gaikwad@thehindu.co.in
